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Friday, 5 April 2013

Do you have a disgruntled (former) girlfriend or parents of a high school sweetheart who did not approve of your physical relationship? Well then - you are screwed. On the 3rd of April, the President approved the Criminal (Amendment) Law Bill which does as much harm, if not more, as it does good.

In an earlier blog post (found here), I argued that creating new laws is not the solution to India's 'rape problem' but rather we should persevere to ensure better enforceability. The post described the threat of generating socially undesirable incentives when we write excessive laws without fully understanding the subject. In any case, as long as the problem is enforceability, no amount of new legislation can make a difference. I feared then that our leaders will once again escape accountability by making a show of activity, using a new piece of legislation, instead of actually doing the hard work of improving the law enforcement.

I cannot say that the bill is complete nonsense, although I am very tempted to do so. It does introduce some worthy amendments (which are discussed below) however, judging by the size of the movement and the pressure it created on the government, the result is disappointing and even a little worrisome. To me it seems like once again the government has been able to out manoeuvre the public. Through this bill they have introduced features that provide some protection and greater ease for the victim to report the crime. However, the law also generates wrong incentives, blatantly discourages pre-marital sex and furthers the sexist thinking that many blame for the problem to begin with.

Positives

Amendments in the Code of Criminal Procedure (1973): These seem to be sensible improvements. While the first change listed below will help with better enforcement, the others will reduce the 'cost' of registering a complaint for the victim.

If the police refuses to register the complaint, as is often reported in the newspapers, they will be liable for up to one year in prison and/or a fine.

As far as possible, the victim, if female, will have the option of giving her statement to a police woman.

If the victim is mentally or physically disabled due to the incident, the police must go to the location of their convenience to register the statement.

If the victim is below the age of 18 she does not need to confront the accused.

Introduction of 'stalking': They have now introduced 'stalking' in the Indian Penal Code which will allow the person to register a legitimate complaint if followed by another person and feels like their safety is being threatened.

Person's past not a factor: The victim's past actions, sexual experiences and character shall not be considered relevant in the debate about whether or not consent was given.

Negatives

Marital Rape is fine: This is the most shocking aspect for me. Among the many explanations for the increasing number of sexual assaults in India was one which claimed that men cannot view women as their equals, and rape is used to demonstrate their power. People were demanding a change in mentality, but that is obviously a slow process. What makes it harder yet are poorly thought out amendments like these which just reinforce the out-of-date belief. This amendment has failed to change - in fact it has further reinforced - the idea that the husband owns his wife: Marital rape is yet again explicitly made an exception to the rape law.

Guilty unless proven innocent: In standard criminal proceedings each person is considered innocent until evidence demonstrates their guilt at which point the obligation to prove their innocence shifts to the accused. However, this amendment seeks to change this fundamental principle: Now, if a girl accuses you of rape you will have to demonstrate how you did not do it. If, for whatever reason, you are unable to give evidence, and it comes down to your word against hers, you will be convicted and branded a rapist. If your former girl friend decides she wants make you pay for dumping her, she can claim you raped her the last time you were together and since you were alone, there is no way to disprove her.

Age of consent: The age of consent for an unmarried woman remains at 18 years. In developed countries if a minor (less than 18 years of age) is involved in a sexual experience with an adult, it is considered statutory rape. However, if two minors are involved it is not considered rape. In India that will not be the case. If your high school sweetheart's parents discover, and are not happy about, your physical relationship - they can just as easily accuse of you rape even if your girlfriend testifies it to be consensual.

Increase in severity of sentence: My earlier blog post (referred above) discusses this point in detail. Increasing the punishment for a crime just decreases the marginal cost of going a step further to murder or something as gruesome. For a full read visit - Don't let them off this easily.

This amendment has been a great disappointment. Just like during the Lokpal movement, the government has yet again managed to escape without actually giving much to the public's demand. This case is not a total loss, but there was so much more to achieve that the little difference that it did make seems insignificant.